The Weekly Round-Up: High Court disapplies Legacy Act provisions and Nicaragua files ICJ proceedings
4 March 2024
In international news
Nicaragua has filed an application to the International Court of Justice instituting proceedings against Germany for alleged violations of its obligations under the Genocide Convention and other norms of international law in relation to the Gaza Strip. Nicaragua’s application argues that by providing political, financial and military support to Israel and withdrawing its funding from the UN’s Relief and Works Agency for Palestine (“UNRWA”), Germany “is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide”. The application calls for the ICJ to indicate provisional measures, including that “Germany shall immediately suspend its aid to Israel, in particular its military assistance including military equipment” and that “Germany must reverse its decision to suspend the funding of UNRWA as part of the compliance of its obligations to prevent genocide”. Germany is one of several countries, including the UK and the United States, which have suspended funding to UNRWA following allegations that some of its staff members were involved in the October 7 Hamas attacks.
In Russia, the human rights activist Orleg Orlov was sentenced to two and a half years in prison after he was found guilty of “repeatedly discrediting” the Russian armed forces. The sentence was ordered at a retrial. Orlov had initially received a 150,000 rouble fine (approximately £1,290) in October 2023. Orlov stated in his closing statement that “[w]e know the real reason why we’re being detained, tried, arrested, sentenced and killed. We are being punished for daring to criticise the authorities. In present-day Russia this is absolutely prohibited.”
In the courts
The High Court of Northern Ireland has disapplied sections of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”) in a judgment handed down on Wednesday. The applicants in the lead case were relatives of individuals who had been killed during the Troubles and the victim of a shooting.
The court held that sections of the Legacy Act 2023 which provide conditional immunity from prosecution for crimes committed during the Troubles breached Articles 2, 3 and 6 ECHR and were incompatible with Article 2 of the Windsor Framework. Article 2 WF provides that the UK shall ensure that no diminution of a right set out in the Good Friday Agreement occurs as a result of the UK’s withdrawal from the European Union. The court considered that in enacting the immunity provisions, the UK government had acted incompatibly with EU law. It held that this could not have occurred if the UK had remained in the EU, and that the provisions therefore breached Article 2 WF. The court concluded that the immunity provisions should be disapplied [613].
The court made no order in relation to sections of the act which provide for the suspension of criminal investigations into Troubles-era offences and prevent new Troubles-related civil claims being brought. In relation to criminal investigations, the court found that the Legacy Act left sufficient scope for the Independent Commission for Reconciliation and Information Recovery to conduct an effective investigation as required under Articles 2 and 3 ECHR. In relation to the ban on civil proceedings, the court found that this provision did interfere with Article 6 rights, but that it was a lawful interference because it pursued the legitimate aim of promoting reconciliation.
In separate proceedings this week the High Court dismissed a challenge to a coroner’s ruling not to relist the inquest into the death of Patrick Duffy, an IRA man who was shot 14 times by undercover soldiers in Derry in 1978. A fresh inquest had been granted in March 2019 but was subject to various delays and was not relisted because it could not be completed before the 1 May 2024 deadline provided for in the Legacy Act.
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